Recorded Restrictions. An association's CC&Rs shall be enforceable equitable servitudes, unless unreasonable. (Civ. Code §5975.) Use restrictions contained in a recorded declaration are afforded a "presumption of validity" and are enforced unless found unreasonable under a deferential standard. (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 372, 383.) Whether CC&Rs are reasonable is determined not by reference to facts that are specific to the objecting homeowner but by reference to the common interest development as a whole. Restrictions contained in CC&Rs are presumed reasonable and will be enforced unless the restriction:
- Is arbitrary,
- Imposes burdens on the property that substantially outweigh the restriction's benefits to the development's residents, or
- Violates a fundamental public policy. (Nahrstedt v. Lakeside Village)
CC&R provisions are presumptively valid and the burden of proving otherwise rests on the challenging owner. (Villa De Las Palmas v. Terifaj.) Also, because CC&Rs are recorded, members are deemed to have knowledge of the restrictions whether or not they received them in escrow whether or not they read them .
Rules & Regulations. Rules and regulations adopted by a board of directors are not given the same presumption of reasonableness as are CC&Rs. (Dolan-King v. Rancho Santa Fe.) Whether a rule is reasonable is to be determined not by reference to facts that are specific to the objecting homeowner but by reference to the common interest development as a whole. The same test of reasonableness used for CC&Rs is used for rules, i.e., rules should be enforced unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit. (Sui v. Price.) To be enforceable, operating rules must meet the following criteria (Civ. Code §4350):
- The rule is in writing.
- The rule is within the authority of the board conferred by law or by the declaration, articles of incorporation or association, or bylaws of the association.
- The rule is not in conflict with governing law and the declaration, articles of incorporation or association, or bylaws of the association. (Ekstrom v. Marquesa.)
- The rule is adopted, amended, or repealed in good faith and in substantial compliance with the requirements of this article.
- The rule is reasonable.
Because rules are not recorded, they must be distributed to owners to be effective.
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